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TMI Blog2010 (11) TMI 833X X X X Extracts X X X X X X X X Extracts X X X X ..... cturing various automobile components. 3. The petitioner is a company registered in Guangdong, China, and is stated to be a manufacturer and supplier of automobile components. 4. According to the petitioner, the parties executed an Exclusive Collaboration Agreement ('Agreement') on 21-5-2005, whereby the petitioner was to supply certain goods to the respondent on the terms contained therein. The duration of the Agreement was for an initial period of 5 years. As per the Agreement, the petitioner had to exclusively supply its products in India to the respondent, and to no other buyer, company or individual, either directly or indirectly, for export from or usage in India. Further, Article 2 of the Agreement, which governed supply and purchase, stipulated that the payment for the goods supplied by the petitioner was to be according to the prices determined in accordance with, and subject to, the terms and conditions of the purchase orders placed from time to time by the respondent with the petitioner. Provisions for the termination of the Agreement were also specified in Article 7 thereof. 5. By a letter dated 18-12-2007, addressed to the Managing Director of the respondent, the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... already made the payment of USD 79,131.00 today. Regarding other payments, you will have to wait for another 6-8 weeks as there is hue recession in the market worldwide. Therefore, we request you to kindly bear with us for a few more weeks. Thanks Nidhi" 9. The petitioner sent another e-mail on 25-8-2008, stating that it was unable to accept a further delay in payment, and requested the respondent to clear the outstanding payment as soon as possible. To this, respondent replied on the same day, stating '.....Do not worry your money is totally safe'. 10. Ultimately, since no payment was forthcoming, the petitioner sent a communication dated 8-10-2008, which stated as follows : "Dear Mr. Premjit Singh, With reference to the overdue payment owed to Fuwa amount USD 582,095.40 since July 3, 2008. For our years of relationship, we have tolerated 3 months delay by now although with repeated reminders from Fuwa and numerous commitments made from ANG. Now, the dragging of the overdue payment has offended the People's Republic of China's Foreign Exchange Regulations. Therefore, we request ANG to settle the outstanding balance amount of USD 582,095.40 within 10 days from this letter. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this, the petitioner responded via a communication dated 25-4-2009, stating that it had been made clear after the termination of the Agreement vide letter dated 18-12-2007 that all future business transactions between the parties would be individual transactions and would not be administered by the Agreement, and therefore, disputes in respect of the goods supplied by the petitioner after 1-1-2008 were beyond the ambit of the arbitration clause in the Agreement. 15. Ultimately, this winding up petition was filed on 23-9-2009, predicated on the non-payment by the respondent of the aforesaid USD 582,095.40. Reply and rejoinder to the petition have been filed. 16. The respondent's preliminary contention that this Court has no jurisdiction to entertain this petition and that it should be dismissed due to the pendency of a civil suit whose subject-matter is identical to that of the present proceedings and also because the respondent has invoked arbitration in that suit, has no force for the reason that the issue before this Court in exercise of company jurisdiction is whether the respondent company ought to be wound up or not, which issue is not available either to the Civil Court or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties, i.e., the Exclusive Supply Agreement dated 21-5-2005, which stipulated that either party was obliged to terminate the Agreement at least 90 days before the expiry of the Agreement. Two communications dated 18-1-2008 and 14-7-2008 have been annexed to the reply, in support of this contention. 20. In the e-mail dated 18-1-2008, the respondent stated, inter alia, as follows : "2. Regarding the Exclusive Agreement, our board has not approved the termination of our agreement as we see no reason to do this. Therefore, we request you to continue this exclusive arrangement till the time mentioned in the agreement as you would appreciate that in spite of your not maintaining the exclusivity clause, by supplying material to KKTC and some other people also, who are very minor players as compared to us, we still want to continue with the Agreement." It is significant that there is no mention of any defective goods being supplied by the petitioner in the aforesaid communication. 21. Another communication dated 14-7-2008 was sent by the respondent to the petitioner, stating as follows : "Dear Amy We had a Board Meeting last week and our management had agreed to your request of signin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve reasons, I do not find force in this contention of the respondent either. 24. Significantly, counsel for the petitioner also submitted at the Bar that, even if it were assumed for the sake of argument, without admitting any liability on behalf of the petitioner, that the respondent was entitled to the amount claimed, a balance amount of USD 197,588.19 was still due to the petitioner out of the total amount claimed. This has not been refuted. 25. From the pleadings, the following facts emerge: The respondent raised no dispute to the statement of account dated 18-7-2008 issued by the petitioner. On the contrary, it sent a number of e-mails to the petitioner in the month of August 2008, acknowledging its liability to pay while assuring the petitioner that the payment would be forthcoming. In all those e-mails, which have been reproduced above, the respondent made no mention of any defect in the goods supplied by the petitioner nor did it call upon the petitioner to explain any business dealings with third parties which, according to the respondent, could have constituted a breach of the Agreement. These points were raised, admittedly, for the first time by the respondent only on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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